1) The accused Festus Mwanzia Mutuku is charged with murder contrary to section 203 as read with 204 of the Penal Code. That on an unknown date and time between 31st December, 2021 and 2nd January, 2022 at Kasunguni area, Kilungu Subcounty within Makueni County he murdered Salvin Maithya Ndome.
2) He pleaded not guilty on 5/7/2022. He is represented by Mr. Kitindio Musembi - Ms Kinuthia is watching brief for the victim’s family.
3) Trial commenced on 26/9/2023.
4) On 26/2/2025, the prosecutor called to the stand PW11 Boniface Mwilu Mutiso. Immediately Mr. Kitindio raised on objection to the calling of this witness on the ground that he had not been supplied with his written statement.
5) Mr. Kazungu, prosecuting counsel’s response was that there were 2 other suspects in this case, the PW11 and Onesmus Mang’eli whom the prosecution had turned state witnesses. Their statements were recorded on 7/1/2022 but for some reason on the other, the statements were not supplied to the defence. He now sought to supply the same and proceed with the evidence of PW11.
6) Mr. Kitindio would still not have it - on the ground that the prosecution made the decision to charge the accused on 23/6/2022 after the state had withdrawn the Misc. Criminal Application before the Kilungu SPM’s Court - after it was determined that an inquest should be considered.
7) He wondered why the prosecution would wait for 2 years 8 months to spring this surprise upon the defence at the time the prosecution had a last adjourned.
8) He submitted that the action by the prosecution was a desperate action to salvage their sinking ship ( their case) . He urged the court to reject the witness.
9) Mr. Kazungu urged the court to allow statements because it was due to inadvertence on their part that the state had not supplied the same to the defence. He argued that that inadvertence ought not to be visited on the case.
10) The 2 witnesses were stepped down to allow counsel to address the court on the issue.
11) I have perused the rival submissions and the only the issue Is whether the objection should be sustained.
12) It is conceded by the prosecution that it has the constitutional duty to disclose, and the accused person has a constitutional right to disclosure of the prosecution case. This is because it this disclosure constitutes part of the right to fair trial.
13) It is submitted that the duty to disclose runs throughout the trial – and the only limitation is that the accused person must be given sufficient time to prepare his defence - the prosecution relies on -
i. Article 50(2) (j) of the Constitution of Kenya which provides for the right of an accused person to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.
ii. Article 50(2) (c) of the Constitution of Kenya which provides for the right of an accused person to have adequate time and facilities to prepare a defence.
iii. Article 50(2)(j) of the Constitution of Kenya; the operating constitutional provision with regard to the right of an accused person to disclosure.
14) The prosecution cites;
R Vs Stinchcombe [1991] 3 S.C.R 326 R Vs Judith Theresa Ward (1993) 96 Cr. App R. 1 both these cases were cited in Thomas Patrick Gilbert Cholmondelely v R [2008] eKLR where the court stated -
“ … there is a duty on the part of prosecuting authorities to disclose to an accused person the evidence which they intend to bring before the court in support of their charge. That duty also includes disclosing to an accused person evidence which the prosecution has in their possession but which they do not intend to use during the trial… the duty continues during the pre-trial period and during the trial itself, so that if any new information is obtained during the trial, it must be disclosed…”
15) The above case was relied on in Dennis Apaa & 2 others V Ethics & Anti-corruption Commission & Another [2012] KEHC 1352 (KLR), and Wairimu V R [2024] KEHC 6134(KLR).
16) The defence relies on Article 50(2)(j) of the Constitution of Kenya 2010 states that every accused person has a right to “ be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”
And R vs Ward [1993] 2 All ER 557.
17) It is urged that the prosecution does not have an open ended cheque to introduce new evidence as they wish at any stage of the proceedings without leave of court - and that the court was bound to weigh the implication of, and the necessity of the evidence sought to be introduced - against the interests of justice - see R Vs Sospeter Odek Ojaamong & 8 others [2019] eKLR.
18) The Defence also relies on Kioko V Republic [2022] eKLR, it was submitted that disclosure is subject to certain limitations and parameters. The same cannot therefore be endless without justification and in a trial, the disclosure process must meet certain criteria inter alia:-
i. The additional evidence is not intended or likely to ambush the defence.
ii. It is not intended to fill in the gaps created by the defence.
iii. The notice is sufficient for the defence to prepare adequately.
iv. The intended evidence could not have been reasonably available or foreseeable before commencement or early stages of the trial.
19) I have carefully considered the submissions. It is true that the right to a fair trial as provided for by Article 50(2) of Constitution includes the duty of the prosecution to disclose its case to the accused person - at the pre-trial stage, and as has been demonstrated - even throughout the trial. I am also of the view that the duty to disclose and throughout the trial is not a blank cheque and the prosecution is bound to justify the failure and to demonstrate that evidence is not held back in bad faith or with a view to ambush the accused person. The court must also be alive to the risk of the accused person being prejudiced by this failure.
20) Mr. Kazungu has conceded that the statements were recorded on 7/1/2022 but due to inadvertence on their part they were not supplied.
21) Let me digress here - for the longest time, I have in open court, in some rulings - expressed concern for the lack of a known system in which it can be ascertained that the prosecution has supplied all the evidence to the defence - and that the defence is kept aware of any pending evidence - for instance - the government analyst reports that are never ready before trial because of the backlog at the government laboratory.
22) This , I have suggested, would be in the manner of a checklist that has been counter signed by the defence and/or the accused. This would limit the number of occasions of omitted supply of witness statements/prosecution evidence. I do this well aware I cannot direct the prosecution on how to do their work but due to the impact it has on the trial, I always find myself saying it, and especially when the issue like this one arises .
23) Back to what truly concerns me - it is an undisputed fact that the prosecution is calling this witness at the tail end of the trial but it is also evident that this was not new evidence - but statements recorded earlier - but not supplied.
24) The accused person is innocent until proven guilty. The prosecution has the onus to prove that. The deceased/ family of the victim are entitled to have the witnesses heard and all the evidence weighed.
25) It is noted that the defence has not seen the statements to be able to address the court on its import on their case and how best the court can deal with the issue.
26) The court has also not seen the evidence or heard the arguments by both sides on how this evidence will affect them hence not able to weigh the import of the evidence at this stage.
27) To balance the interest of justice - it is only fair that the objection be overruled to this extent.
Orders
1. The objection is overruled - to this extent.
2. The defence be supplied with the witness statements of the 2 witnesses.
3. The defence counsel to have sufficient time to go through the statements and seek instructions on the same.
4. The defence to make any appropriate applications thereafter.
28) These orders are made in the best interest of the justice.
a. Mr. Kazungu to serve the statements - today by close of business upon Mr. Kitindio Musembi.
b. Mr. Kitindio Musembi requires 21 days to seek instructions the same is granted.
c. Mention on 30/4/2025 for directions.
Dated signed and delivered, this 28th March 2025
MUMBUA T. MATHEKA
JUDGE